Question: I have already worked in the United States for some time. Does my sponsor still need to submit the affidavit of support?

Answer: Under INA §212(a)(4)(C), an alien who seeks permanent residence as an immediate relative or as a family preference immigrant is inadmissible as an alien likely to become a public charge, unless the visa petitioner submits an affidavit of support (INS Form I-864) that meets the requirements of §213A. This requirement also applies to employment-based immigrants, if a relative either filed the Form I-140, or has a significant ownership interest in the firm that did file the Form I-140. Section 213A(a)(3)(A), however, provides that the obligations under a Form I-864 terminate once the sponsored alien has worked, or can be credited with, 40 qualifying quarters of coverage, as defined under title II of the Social Security Act. The affidavit of support regulation reflects this provision.

Question: Assuming that I can show that I have worked 40 qualifying quarters, is an affidavit of support still required if, at the time I seek permanent residence through admission or adjustment of status, I am able to show that I have already has worked, or can be credited with, 40 qualifying quarters of coverage?

Answer: The policy of the Service is that an affidavit of support is not required if, at the time you seek permanent residence through admission or adjustment of status, you can show that you have already worked, or can be credited with, 40 qualifying quarters of coverage.

The basis for this policy is that it represents the most reasonable interpretation of this requirement. The obligations under the Form I-864 come into force when the sponsored alien acquires permanent residence. But if, at that time, the sponsored alien already has worked, or can be credited with, 40 qualifying quarters of coverage, then the obligation will expire at the very moment that it begins. Requiring the affidavit of support in this situation, therefore, would serve no purpose.

Question: What if my parent has qualifying quarters of work, but I don’t. Is there anything that can be done?

Answer: INA §213A(a)(3)(B), specifies how an you can be credited with qualifying quarters worked by someone else. If you can claim qualifying quarters worked by a parent, you may claim all the qualifying quarters worked by the parent before the your eighteenthbirthday. Note that the statute does not require the parent-child relationship to have existed when the parent works the qualifying quarters. So you can claim even those of the parent’s qualifying quarters that the parent worked before your birth or adoption. You can also claim qualifying quarters worked by a spouse. However, you may only claim those quarters that the spouse worked during the marriage. It must also be the case either you are still married to the person who worked the qualifying quarters, or that that person is dead.

Question: What if I received public assistance?

Answer: You may not claim any qualifying quarter of coverage worked after December 31, 1996, if the person you worked that qualifying quarter – whether it was you, a spouse or a parent, if you have received any Federal means-tested benefit during the same period.

Answer: Under the Immigration and Nationality Act (INA), the Attorney General “shall prescribe

safeguards to protect the rights and privileges” of respondents for whom it is “impracticable” to

be present at removal proceedings by reason of mental incompetency. Some courts have construed this provision to protect incompetent respondents able to make a physical appearance, but unable to meaningfully participate without representation. Because competency issues may stem from both physical and psychological conditions, which give rise to a broad spectrum of capabilities and needs, the procedural safeguards will differ from case to case.

Question: What protections are persons with mentally incompetency issues given?

Answer: Of the extensive regulations that govern the conduct of removal proceedings, only a handful

address the subject of mental competency. Service of a Notice to Appear upon the person with whom a mentally incompetent respondent providing that an attorney, legal representative, legal guardian, near

relative, or friend may “appear on behalf of” a respondent whose mental incompetency makes it

“impracticable” for him or her to “be present” at a hearing; permitting an immigration judge to waive the presence of a mentally incompetent respondent who is represented by an individual from one of the preceding categories); prohibiting an immigration judge from accepting an admission of removability from an incompetent respondent unless accompanied by an attorney, legal representative, near relative,

legal guardian, or friend, and requiring a “hearing on the issues”. In each case, the regulations

require immigration judges to determine whether a respondent is “incompetent” — without

defining that term — but do not provide any meaningful guidance either for determining

competency for particular purposes or for guaranteeing due process for a respondent who lacks

competency to proceed. That is why the new case from the BIA came out in order to clarify and make law on this issue so it is not as ambiguous.

Question: OK. What exactly does the new case rule on this matter?

Answer: In its precedential decision, Matter of M-A-M-, the Board of Immigration Appeals, for the first time, set forth a test for immigration judges to assess a respondent’s ability to participate in a removal hearing. According to M-A-M-, the decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative (if there is one), and has a reasonable opportunity to examine adverse evidence, present favorable evidence, and cross-examine government witnesses.

Noting that a respondent is presumed to be competent, the Board explained that an immigration

judge need not apply the M-A-M- test in the absence of any “indicia of mental incompetency.”

However, such indicia may derive from observations of the respondent’s functioning

and behavior by the immigration judge or either party, testimonial evidence, or documentation

submitted as part of the record. Potential indicators of serious mental disorders, which may give rise to competency issues, include difficulty communicating thoughts completely or coherently, perseveration, overly simplistic or concrete thinking, words or actions that do not make sense or suggest that the person is experiencing hallucinations or an altered version of reality, memory impairment, disorientation, an altered level of consciousness or wakefulness, or a high level of distraction, inattention or confusion.

Some respondents who cannot represent themselves in removal proceedings due to competency issues may still have the ability to consent to representation, to assist in their defense, or to stand trial. A mental health diagnosis or diagnosis of developmental disability or has been previously

labeled “incompetent” does not mean that he or she is currently incompetent. Because mental

competency may vary over time, the BIA instructed immigration judges to consider “indicia of

incompetency” throughout the duration of removal proceedings.

Question: If the Judge finds that the person in removal proceedings has some elements of being incompetent, what must the Judge do?

Answer: When indicia of incompetency are present, an immigration judge must determine whether a

respondent is sufficiently competent to proceed without safeguards.Even if a respondent has been pronounced mentally competent, procedural safeguards may be necessary to ensure a fair hearing in immigration court if, for example, a respondent has a significant history of mental illness, is experiencing an acute aggravation of mental illness, or if the respondent’s condition has changed significantly since competency was determined. By the same token, certain mental impairments would not necessarily preclude meaningful participation in immigration proceedings without safeguards.

The BIA emphasized that measures needed to assess competency will vary from case to case.

For example, an immigration judge could ask the respondent basic questions to assess his or her

ability to understand the nature and object of the proceedings, grant a continuance to enable the

parties to collect relevant documentary evidence, solicit testimony from family or close friends,

or order a mental competency evaluation. When the assessment has been completed, the immigration judge must articulate his or her reasoning and decision regarding the respondent’s competency on the record.

Of course, the Immigration Judge is neither a psychologist or a psychiatrist and is not trained in whether a person has a mental illness. This is why it would definitely be advisable to bring in one of these professionals as an expert witness and to submit reports of the mental condition on behalf of a detailed analysis made on behalf of the respondent.

The political gamesmanship has begun with today’s hearing in the House Subcommittee on Immigration. The hearing is an example of backward thinking in tackling America’s broken immigration system. It represents an extension of a policy paradigm that has already failed.

The DOS Liaison Committee reminds members that despite visa retrogression for various immigrant visa categories, posts should issue immigrant visas with a full six-month validity, even if the applicant’s immigrant visa category will retrogress.